Ein Staat ist immer nur so frei wie sein Waffengesetz.“
Gustav Heinemann (ehemaliger deutscher Bundespräsident, 1899 – 1976)

EJVW’S POSITION ON AMENDMENT
OF THE FIREARMS DIRECTIVE (COUNCIL DIRECTIVE 91/447/EEC)

EJVW supports adequate regulatory framework to control possession and acquisition of firearms within the EU. EJVW looks also forward to contribute to legislative debate on the appropriate means of preventing trafficking illegal firearms into and between the Member States. EJVW welcomes the EC’s initiative to further combat terrorism as well as illegal manufacturing and/or trafficking firearms. EJVW nonetheless doubts whether there is a causal relationship between legal firearms ownership and trafficking of firearms. Therefore, in the view of EJVW, the aftermath of tragic events which occurred on November 13 2015 in Paris calls for the EC leadership in proposing a focused and legally efficient toolkit to address illicit trafficking of firearms by terror and criminal organizations. EC’s response should be also preceded by a thorough cost-benefit analysis providing for facts and robust statistical data on criminal use of legally possessed firearms in the EU.

  1. Overall stance

EJVW strongly disagrees with the   inclusion of firearms collectors in the scope of the Directive (Article 2 of the proposal). The EC provided no credible evidence that firearms collectors constitute a real source of traffic of firearms, in particular no data or case law was referred to at this point by the EC. In the view of EJVW the  amendments to Annex I to Directive 91/477/EC part II, setting forth that semi-automatic firearms for civilian use which resemble weapons with automatic mechanisms belong to the category A of firearms lacks justification. It is thus completely incorrect to classify firearms for regulatory purposes on the basis of such subjective criterion as resemblance. Apart from a common-sense argument (resemblance itself does not present a threat to public safety) it should be also highlighted that proper enforcement of the  provision could be legally challenged before court. In every case where the relevant competent authority classifies a firearm as “resembling weapons with automatic mechanism” this conclusion will have to be drawn on the basis of an independent opinion delivered by an expert witness (e.g. weaponry historian) actually proving in each and every case that a firearm A resembles automatic firearms.

The Directive should be the legal instrument that regulates lawful acquisition and possession of firearms in the EU, not a measure of expropriation of the civilian gun owners. EJVW highlights that no relationship between the lawful possession of firearms for the purpose of collecting or target shooting and criminal behavior (including terrorism) has been so far established. Moreover, lawfully owned firearms have not been proved to feed into the illegal market. On the contrary, the individuals involved in the terrorist attacks in Paris illegally obtained automatic assault rifles which never entered civilian market and which previously were stored in the military depots in Slovenia, Bosnia and Macedonia[1].

  1. Appearances can be deceiving

EJVW considers the Directive to be sufficiently granular while defining different categories of firearms. Any amendments resulting in re-classification of particular types of firearms should be done with due diligence and always preceded by a proper cost-benefit analysis. This being said there is no single word in the explanatory memorandum attached to the proposal which could support the need of adding to the category A of firearms “Semi-automatic firearms for civilian use which resemble weapons with automatic mechanisms”. Therefore, the aforementioned amendment is not only materially but also formally unjustified, since the EC is legally obliged to present policy rationale for the   amendment. Clearly, an evidence-based analysis of the proposal along with the explanatory memorandum does not reveal any value added of the provision in question. In conformity with the European intellectual tradition one should use the Ockham’s razor while analysing any new legal changes to the current framework and thus putting the forthcoming amendment to a simple test: can the goal of a provision in question be achieved with the means already available? Under the Treaty it is called the subsidiarity principle (Article 5 of the Treaty). In case of the “semi-automatic firearms for civilian use which resemble weapons with automatic mechanisms;” it is more then obvious that this provision is redundant. It does not prevent any illegal activity, nor does it increase safety of the EU citizens. Last, but not least, it cannot be enforced in a convergent manner by the EU Member States and thus creates a significant risk of regulatory arbitrage. From a purely legal perspective the proposal does not formally comply with the Article 5 of the Treaty: Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal’s financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.

The EC fails to justify the need for further harmonisation of legislation with regards to control of firearms. The  plans laid  down  in  the  proposal  also  impinge  unnecessarily on the  competences of  the Member States and the principles of subsidiarity and proportionality.

  1. 5-year limit

Currently every lawful owner of firearms within the EU has to undergone a strict fit&proper test including but not limited to medical and psychological examination before he/she obtains the license to possess firearms. Member States decide whether certain categories of licenses (e.g. concealed carry licenses for self defense) should be issued for a fixed term. Now, the EC came up with a revolutionary proposal to amend Article 7 para 4 of the Directive by adding to this the following two sentences “The maximum limits shall not exceed five years. The authorisation may be renewed if the conditions on the basis of which it was granted are still fulfilled.” It is rather disappointing that rationale for this amendment is missing in the explanatory memorandum attached to the proposal. It only says that “”The proposal also introduces a five year time limit for the duration of a license.”. The overarching principle of the EU law-making is that every amendment to the current legislation has to be properly explained and justified. If the Commission truly believes that the   provision is of any use then it should substantiate this claim. Not doing so allows the EU firearms owners to question whether proportionality principle has been correctly applied by the EC. As ECJ rightly pointed out in numerous cases principle of proportionality consists of three tests applied to the allegedly infringing measure, respectively the suitability, the necessity and the proportionality sensu stricto test. Therefore, regulatory measures possibly infringing rights to property should be subject to strict proportionality tests[2]. Conservative approach in assessing the proposal should be in EJVW’s opinion taken ex ante in order to mitigate substantial legal risk, since there is enough ECJ case law available where unnecessarily restrictive legislative measures were ruled non-compliant with the relevant provisions of the Treaty[3]

  1. Possible infringement of private property rights

 

Legal effect of the proposal entering into force can be assessed as both de iure and de facto infringement of ownership of lawfully possessed semi-automatic firearms. One cannot exclude a retroactive effect of the   legislation after its transposition into the national regulatory regimes of particular Member States. In the European Court of Human Rights’ (the “ECHR”) judgment of 24 July 2012 (Nowakowski vs. Poland) the ECHR referred to a matter of confiscation of a collection of firearms in the court of law. As ECHR stated, Article 1 of Protocol No. 1 to the Convention comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999‑V; Barbara Wiśniewska v. Poland, no. 9072/02, § 93, 29 November 2011).

The ECHR noted that the firearms’ collector was deprived of his property and lost a collection of considerable historical and presumably also financial value, while ultimately a public museum acquired it for free. This was sufficient to enable the ECHR to conclude that there has been a violation of Article 1 of Protocol No. 1 to the Convention. Referring to the above mentioned ruling of the ECHR it should be highlighted that in case of the transposition of the proposal having retroactive effect, the relevant Member State will be obliged to pay compensation to the expropriated semi-automatic firearms owners. The budgetary effect of the proposal is therefore underestimated and should also be taken into account by the EC in the envisaged cost-benefit analysis of the proposal.

[1] Source:

[2] E.g. Case 114/76, Bela-Muhle v Grows-Farm, [1977] ECR 1211; Case 116/76, Granaria, [1977] ECR 1247, Joined Cases 119 and 120/76, Oelmuehle and Becher [1977] ECR 1269.

[3] See Case 11/70, Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle Getreide [1970] ECR 1125 Case 104/75, de Peijper [1976] ECR 613, Case C-384/93, Alpine Investments [1995] ECR I-1141, Case 44/79, Hauer v Land Rheinland-Phalz [1979] ECR 3727.

The right of the people to keep and bear arms shall not be infringed.